Joelson v. Sultzbaugh

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No. 3:19-cv-1595 DMS-JLB MAXWELL JOELSON, 11 ORDER DISMISSING PETITION Petitioner, FOR WRIT OF HABEAS CORPUS 12 UNDER 28 U.S.C. § 2241 v. [13] DAVID J. SULTZBAUGH, CHIEF 14 U.S. PROBATION OFFICER, FOR THE SOUTHERN DISTRICT OF 15 CALIFORNIA, 16 Respondent. [17] 18 On August 23, 2019, Petitioner Maxwell Joelson, proceeding pro se, filed a 19 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 . (ECF No. 1.) 20 At the time of the Petition’s filing, he was under supervised release in the Southern 21 District of California. (Id. at 1.) On October 27, 2020, the Court issued an order 22 setting the briefing schedule in this case. (ECF No. 11.) Respondent filed an 23 opposition to the Petition. (ECF No. 13.) Petitioner filed a reply. (ECF No. 17.) For 24 the reasons discussed below, the Court DISMISSES the Petition. 25 I. 26 BACKGROUND 27 In 1990, the United States brought charges against Petitioner in the United 1 import approximately 770 kilograms of cocaine in violation of 21 U.S.C. §§ 952 and 2 963; (2) conspiracy to possess and distribute approximately 770 kilograms of 3 cocaine in violation of 21 U.S.C. §§ 841 (a)(1) and 846; (3) aiding and abetting the 4 importation of approximately 770 kilograms of cocaine in violation of 21 U.S.C. § 5 2; and (4) possession with the intent to distribute approximately 770 kilograms of 6 cocaine in violation of 21 U.S.C. § 821 (a)(1). On February 12, 1991, a jury found 7 Petitioner guilty on all four counts. 8 On direct appeal, the Ninth Circuit Court of Appeals affirmed the conviction, 9 but remanded the case to the district court for resentencing. United States v. Joelson, [10] 7 F.3d 174 (9th Cir. 1993). The trial court sentenced Petitioner to 360 months in 11 prison followed by five years of supervised release, which the Court of Appeals 12 affirmed. United States v. Joelson, 60 F.3d 835 (9th Cir. 1995). 13 The remaining procedural history is long and complicated, and its finer details 14 are ultimately largely irrelevant to the disposition of the instant Petition. This history 15 was recently recounted by Judge David O. Carter of the Central District of California 16 in an order denying Petitioner’s most recent successive habeas petition in that court, 17 which Petitioner styled as a Rule 60(b) motion. See Joelson v. United States, 2:9018 cr-00565-DOC-1, ECF No. 319, at 3–5 (C.D. Cal. Jan. 12, 2021). In short, Petitioner 19 has filed numerous motions to vacate, set aside, or correct his sentence under 28 20 U.S.C. § 2255 and Rule 60(b) motions in the Central District since his conviction. [21] Id. The court denied each of these motions—some of which were filed without 22 authorization from the Court of Appeals. Id. The Ninth Circuit has denied all his 23 appeals of these decisions. Id. However, he was successful in seeking a sentence 24 modification, resulting in his release from prison, at which point he was placed on 25 supervised release, and eventually released from custody all together. Id. 26 On August 23, 2019, while serving his term of supervised release in the 27 Southern District of California, Petitioner filed the present petition pursuant to 28 1 Petitioner “seeks relief under [Section 2241] because the [Section] 2255 process is 2 ‘inadequate and [ineffective]’ for relief [. . .] due to the post-tria[l] reviewing 3 courts[’] and the government’s ultra-vires actions over the course of 21 [years] of 4 post-trial litigation.” (Id. at 2.) On November 18, 2020, the government filed a 5 response in opposition to the Petition arguing that the Court lacks jurisdiction to 6 grant Petitioner relief because the Petition does not qualify for the escape hatch 7 provision of Section 2255—which renders it unsuitable for review by this Court 8 under Section 2241. (ECF No. 13.) On December 4, 2020, Petitioner filed a reply 9 brief rebutting the government’s arguments. (ECF No. 17.) 10 II. 11 LEGAL STANDARD 12 Generally, a person in federal custody can seek post-conviction relief in two 13 ways. First, such persons can file a motion under 28 U.S.C. § 2255 to challenge 14 their conviction or sentence. Section 2255 motions are properly filed in the judicial 15 district where the conviction occurred. Second, they can file a habeas petition 16 challenging the manner, location, or conditions involved in the execution of their 17 sentence pursuant to 28 U.S.C. § 2241 . Section 2241 motions are properly filed in 18 the judicial district of the person’s confinement.1 19 While Section 2255 generally “provides the exclusive procedural mechanism 20 by which a federal prisoner may challenge the legality of his detention,” Lorentsen 21 v. Hood, 223 F.3d 950, 953 (9th Cir.2000), it also provides an exception to this [23] 1 Both 28 U.S.C §§ 2255 and 2241 require that a petitioner be “in custody” to seek [24] relief. This custodial requirement is construed broadly. See Maleng v. Cook, 490 25 U.S. 488, 492 (1989) (“the ‘in-custody’ language does not require that a prisoner be physically confined in order to challenge his sentence on habeas corpus.”). Here, [26] Petitioner was on supervised release in the Southern District of California at the time 27 he filed this petition, so the custodial requirement of § 2241 is satisfied. See Matus1 limitation known as the “escape hatch.”2 This escape hatch provision allows a 2 person in federal custody to “‘file a habeas corpus petition pursuant to § 2241 to 3 contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or 4 ineffective to test the legality of his dentition.’” Stephens v. Herrera, 464 F.3d 895 , 5 897 (9th Cir. 2006) (quoting Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 6 2000)). This is a narrow exception. United States v. Pirro, 104 F.3d 297, 299 (9th 7 Cir. 1997). A petitioner has the burden of demonstrating that his remedy under 8 Section 2255 is inadequate or ineffective. Redfield v. United States, 315 F.2d 76 , 83 9 (9th Cir. 1963). 10 To qualify for the escape hatch of Section 2255 and file a motion under 11 Section 2241, a petitioner must (1) make a claim of actual innocence, and (2) 12 demonstrate that he did not have an “unobstructed procedural shot” at presenting 13 that claim for relief. Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008). As to 14 the first prong of this requirement, legal insufficiency of the evidence is not enough 15 to show actual innocence. See Bousley v. United States, 523 U.S. 614, 623 (1998). 16 “To establish actual innocence, petitioner must demonstrate that, in light of all the 17 evidence, it is more likely than not that no reasonable juror would have convicted 18 him.” Id. at 623 ; see also Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 19 2011). To determine whether the second prong is satisfied, a court must consider 20 “(1) whether the legal basis for petitioner's claim ‘did not arise until after he had 21 exhausted his direct appeal and first § 2255 motion;’ and (2) whether the law 22 changed ‘in any way relevant’ to petitioner's claim after that first § 2255 motion.” 23 Harrison, 519 F.3d at 960 (quoting Ivy v. Pontesso, 328 F.3d 1057 , 1060–61 (9th [24] 25 2 The relevant provision reads as follows: “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [26] this section, shall not be entertained if it appears that the applicant has failed to apply 27 for relief, by motion, to the court which sentenced him, or that such court has denied 1 Cir. 2003)). Further, a petitioner’s “§ 2255 remedy will not be deemed ‘inadequate 2 or ineffective’ merely because the claims presented in it were denied or precluded 3 from being raised in a second or successive motion.” Rice v. Thompson, 2 :20-cv4 01258-CKD, 2021 WL 616932 , at 3 (E.D. Cal. Feb. 17, 2021) (citing Tripati v. 5 Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); Moore v. Reno, 15 F.3d 1054 (9th 6 Cir. 1999)). 7 III. 8 DISCUSSION 9 Petitioner does not qualify for the escape hatch under 28 U.S.C. § 2255 and is 10 not entitled to file a habeas petition pursuant to § 2241. The Court therefore 11 dismisses the Petition for lack of jurisdiction.3 12 Even assuming without addressing Petitioner’s claim of actual innocence, the 13 Court rejects Petitioner’s argument that he did not have an “unobstructed procedural 14 shot” at presenting his claim. Petitioner has had numerous unobstructed 15 opportunities to present his claims, and has already litigated versions of those claims 16 before the United States District Court for the Central District of California and the 17 Ninth Circuit Court of Appeals. (See ECF No. 1, at 15–20; see also United States v. [19] 3 Aside from the issue of whether Petitioner qualifies for the escape hatch, the United [20] States makes two other arguments as to why the Court cannot and should not 21 exercise jurisdiction over this case. First, the government argues that the Court lacks jurisdiction over the case because Petitioner seeks review of his post-conviction [22] proceedings rather than of his conviction or sentence. (See ECF No. 13 at 4.) The 23 government argues that “the jurisdiction to exercise such review rests with the Courts of Appeals and United States Supreme Court.” (Id. (citing 28 U.S.C. §§ 2255 [24] and 2241; 28 U.S.C. § 1291 ).) The Court need not address this argument because it 25 finds that it lacks jurisdiction on other grounds. Second, the government argues that the Court should decline jurisdiction over the case in the interest of federal comity [26] because similar claims were pending before the Central District of California. (ECF 27 No. 13, at 6.) However, the Central District recently issued an order resolving those 1 || Joelson, 2:90-cr-00565-DOC-1 (C.D. Cal.).) Petitioner argues that he has not had 2 ||any unobstructed opportunities to present his claims because the Central District 3 ||“unreasonably applied inadequate procedural bars” and “unreasonably ignored 4 ||proffered material.” (ECF No. 1, at 23.) But an unfavorable ruling does not 5 ||constitute an obstructed procedural shot. Indeed, Petitioner’s own reply brief quotes 6 ||from the habeas court, which states “Petitioner’s claim regarding actual innocence 7 |}is meritless. It is based upon the assertion that he was under complete duress at the 8 ||time of the crime, an argument that was explicitly rejected by the Ninth Circuit.” 9 ||(ECF No. 17, at 4.) Because Petitioner has had numerous unobstructed procedural 10 ||shots at presenting his claims, his Petition does not qualify for the escape hatch 11 || provision of 28 U.S.C. § 2255 . This Court thus lacks jurisdiction to hear Petitioner’s 12 |/claim under Section 2241. 13 For the reasons explained above, the Court DISMISSES the Petition. 14 ITIS SO ORDERED. [15] 16 || Dated: April 1, 2021 17 2 ine Yn: L4\ 18 Hon. Dana M. Sabraw United States Chief District Judge